Monica A. Duffy says the Committee on Professional Standards already tasked with the job

Robert Gavin, Law Beat

Published 9:22 pm, Wednesday, July 29, 2015

Photo: PHILIP KAMRASS

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Times Union Staff photograph by Philip Kamrass -- Stephen Downs sits near the mock up of a billboard on I-90 to protest his recent arrest at Crossgate Mall for wearing a peace t-shirt, right, during a press conference to announce proposed legislation to protect speech and protests at malls, at the Legislative Office Building in Albany, NY Monday , March 31, 2003. FOR ALAN WECHSLER STORY. less

Times Union Staff photograph by Philip Kamrass -- Stephen Downs sits near the mock up of a billboard on I-90 to protest his recent arrest at Crossgate Mall for wearing a peace t-shirt, right, during a press ... more

Stick him in the same room as Monica A. Duffy, chief attorney for the Committee on Professional Standards.

Selkirk attorney Stephen K. Downs found himself in that situation at the Court of Appeals Tuesday while testifying before the Commission on Statewide Attorney Discipline, a panel put together by Chief Judge Jonathan Lippman.

Some background: Downs, 73, an attorney since 1970, gained international attention in 2003 when he was kicked out of Crossgates Mall and arrested after he refused to remove an anti-war shirt just days before the Iraq war began.

This time, he was among fellow lawyers — even if all sides did not agree.

Duffy, whose committee investigates allegations of attorney wrongdoing as an arm of the Albany-based Appellate Division of state Supreme Court, 3rd Department, was one of the six commission members hearing Downs complain at length about misconduct while supporting a proposed state Commission on Prosecutorial Misconduct.

Downs explained it would be similar to the existing state Commission on Judicial Conduct, where he once served as chief attorney. That judicial commission handles complaints about judges, this one would handle complaints about prosecutors.

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In making his case, Downs said attorney grievance committees — such as the one Duffy works for — have turned their backs on allegations of prosecutorial misconduct because they "have not wanted to take on the prosecutors." Downs said he has constantly heard that most defense attorneys advise their clients to not even bother filing misconduct complaints against prosecutors.

"I think from an anecdotal point of view, I believe almost nobody has any faith in the system. Basically, they don't believe it works," Downs testified. "I don't believe, even think that the grievance committees take up the subject of prosecutorial misconduct."

Downs said there was a need to be "a little proactive and trying to get out the idea that you're actually there and you care about discipline."

At that point, Duffy had heard enough.

"You just stated that grievance departments do not want to take on prosecutorial complaints. I have to say as chief attorney for the 3rd Department I don't agree with that," Duffy told Downs. "A complaint with respect to any attorney, regardless of the area of practice, is considered by our committee and is investigated. And if there's a finding of professional misconduct, the committee takes action."

Duffy said prosecutors — including district attorneys — have faced charges of prosecutorial misconduct from her committee and been publicly and privately disciplined by the Appellate Division. Disciplinary decisions, she noted, are available to the public to access in all four departments.

"So there is data to support the fact that prosecutors are not treated differently by the grievance committees," Duffy told Downs. "You, by reading those (decisions), you can see that the grievance departments certainly do consider complaints against prosecutors. They are attorneys. The grievance departments in all four departments have jurisdiction over all attorneys regardless of the area of practice that they partake in."

Downs' reaction?

"I absolutely agree with that. I don't disagree with that all," the attorney said. "Anything I said that led you to see that I did not think (you) had discipline over district attorneys, I'm sorry. I apologize. That's not my testimony."

Well, it not only appeared to be Downs' testimony, but in a June 17 letter to the Times Union, Downs wrote: "Virtually all other professions are subject to professional oversight — lawyers, stockbrokers, restaurants, even hairstylists. Only prosecutors have no body to enforce compliance with the rules."

That aside, Downs clarified his remarks to Duffy.

"All I'm saying is that given the magnitude of the problem, the amount of discipline imposed is not sufficient to convince the public that anything is going to be done about it," Downs said. "I'm not here to take on the grievance committees. A lot of the people on the grievance committees are my friends."